The indispensible Powerline offers another legal take on the NSA surveillance program, this one from former U.S. attorney Bill Otis. Mr. Otis was part of a legal team that represented the U.S. government in Troung case, where the government conducted a warrantless wiretap of a suspect for months (the wiretap occurred before the FISA was enacted in 1979). As Mr. Otis notes, the Fourth Circuit held that:
"...the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons."
Given the stated purpose of the NSA program--gather information on suspected Al Qaida operatives--the administration would appear to be on firm legal ground, given the precedent established by Troung. Mr. Otis also observes that, in a court footnote, the Fourth Circuit determined that the warrantless wiretaps passed muster under the Fourth Amendment, and would satisfy FISA standards as well.
Funny, but you don't see that type of legal analysis highlighted in the MSM. But the NYT (and other publications) are eager to quote any law professor who thinks the NSA program violated the law.