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USA PATRIOT ActSection 215 of the PATRIOT act authorized the FBI to subpoena some or all business records from a business record holder using a warrant applied for in the Foreign Intelligence Surveillance Court.

Terrorist surveillance program

While the dispute over the NSA program was waged on multiple fronts, the legal dispute pitted Bush and Obama administrations against opponents in Congress and elsewhere. Supporters claimed that the President's Constitutional duties as commander in chief allowed him to take all necessary steps in wartime to protect the nation and that AUMF activated those powers. Opponents countered by claiming that instead that ex

Klein's January 16, 2004 statement included additional details regarding the construction of an NSA monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which were occupied by AT&T.[110][111]

According to Klein's affidavit, the NSA-equipped room used equipment built by Narus Corporation to intercept and analyze communications traffic, as well as to perform data-mining.[112]

Experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on Klein's affidavits and those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the Federal Communications Commission.[113] They concluded that the likely architecture of the system created serious security risks, including the danger that it could be exploited by unauthorized users, criminally misused by trusted insiders or abused by government agents.[114]

David Addington – at that time legal counsel to former Vice President Dick Cheney – was reported to be the author of the controlling legal and technical documents for the program.[115][116][117]

While the dispute over the NSA program was waged on multiple fronts, the legal dispute pitted Bush and Obama administrations against opponents in Congress and elsewhere. Supporters claimed that the President's Constitutional duties as commander in chief allowed him to take all necessary steps in wartime to protect the nation and that AUMF activated those powers. Opponents countered by claiming that instead that existing statutes (predominantly FISA) circumscribed those powers, including during wartime.[118]

Formally, the question can be seen as a disagreement over whether Constitutional or statutory law should rule in this case.[119]

As the debate continued, other arguments were advanced.

Constitutio

Formally, the question can be seen as a disagreement over whether Constitutional or statutory law should rule in this case.[119]

As the debate continued, other arguments were advanced.

The constitutional debate surrounding the program is principally about separation of powers. If no "fair reading" of FISA can satisfy the canon of avoidance, these issues must be decided at the appellate level. In such a separation of powers dispute, Congress bears burden of proof to establish its supremacy: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.[120]

Article I and II

Whether "p

Whether "proper exercise" of Congressional war powers includes authority to regulate the gathering of foreign intelligence is a historical point of contention between the Executive and Legislative branches. In other rulings [121] has been recognized as "fundamentally incident to the waging of war".[122][20]

"Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information",[20] published by The Congressional Res

"Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information",[20] published by The Congressional Research Service stated:

A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.

The same report repeats the Congressional view that intelligence gathered within the U.S. and where "

The same report repeats the Congressional view that intelligence gathered within the U.S. and where "one party is a U.S. person" qualifies as domestic in nature and as such is within their purview to regulate, and further that Congress may "tailor the President's use of an inherent constitutional power":

[123]

District Court findings

Even some legal experts who agreed with the outcome of ACLU v. NSA criticized the opinion's reasoning.[124] Glenn Greenwald argued that the perceived flaws in the opinion in fact reflect the Department of Justice's refusal to argue the legal merits of the program (they focused solely on standing and state secrets grounds).

Even some legal experts who agreed with the outcome of ACLU v. NSA criticized the opinion's reasoning.[124] Glenn Greenwald argued that the perceived flaws in the opinion in fact reflect the Department of Justice's refusal to argue the legal merits of the program (they focused solely on standing and state secrets grounds).[125]

FISA practicality

FISA grants FIS

FISA grants FISC the exclusive power to authorize surveillance of US persons as part of foreign intelligence gathering and makes no separate provision for surveillance in wartime. The interpretation of FISA's exclusivity clause is central because both sides agree that the NSA program operated outside FISA. If FISA is the controlling authority, the program is illegal.[126]

The "no constitutional issue" critique is that Congress has the authority to legislate in this area under Article I and the Fourth Amendment,[127] whi

The "no constitutional issue" critique is that Congress has the authority to legislate in this area under Article I and the Fourth Amendment,[127] while the "constitutional conflict" critique[128] claims that the delineation between Congressional and Executive authority in this area is unclear,[129] but that FISA's exclusivity clause shows that Congress had established a role for itself in this arena.

The Bush administration argued both that the President had the necessary power based solely on the Constitution and that conforming to FISA was not practical given the circumstances. Assistant Attorney General for Legislative Affairs, William Moschella, wrote:

As explained above, the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities.

FBI Special Agent Coleen Rowley, in her capac

FBI Special Agent Coleen Rowley, in her capacity as legal counsel to the Minneapolis Field Office[130] recounted how FISA procedural hurdles had hampered the FBI's investigation of Zacarias Moussaoui (the so-called "20th hijacker") prior to the 9/11 attacks. Among the factors she cited were the complexity of the application, the amount of detailed information required, confusion by field operatives about the standard of probable cause required by the FISC and the strength of the required link to a foreign power. At his appearance before the Senate Judiciary Committee in June 2002, FBI Director Robert Mueller responded to questions about the Rowley allegations, testifying that unlike normal criminal procedures, FISA warrant applications are "complex and detailed", requiring the intervention of FBI Headquarters (FBIHQ) personnel trained in a specialized procedure (the "Woods" procedure) to ensure accuracy.[131]

The Supreme