Righties have been spamming me with this, so I’ll respond to it once and get it over with. The most recent email:

President Roosevelt, in a signed May 21, 1940 memorandum to his attorney general, FDR wrote:

I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.

However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.

It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called “fifth columns” in other countries and in preparation for sabotage, as well as in actual sabotage.

It is too late to do anything about it after sabotage, assassinations and “fifth column” activities are completed.

You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.

The left loves to whine and rant and bitch about what the administration is doing. Instead, please be responsible and use the truth to make your arguments. It would be nice to read.

Douglas Charles, History News Network, provides some historical background (emphasis added):

In 1934 Congress passed the Federal Communication Act which outlawed the interception and divulgence of wire or radio communications. The law was later upheld by two companion Supreme Court rulings, Nardone v. US, in 1937 and 1939. But with the crisis of World War II mounting, in May of 1940 President Roosevelt secretly authorized the use of wiretaps in national defense cases if approved by the attorney general. Roosevelt further directed that the use of wiretaps be kept to a “minimum” and limited “insofar as possible” to foreign nationals. (Because this authorization was not justified using any congressional mandate, war declaration, or constitutional powers, resting instead on a White House interpretation of the Supreme Court’s intent not to restrict wiretaps in “grave matters involving the defense of the nation,” the Bush administration apparently chose not to cite this to bolster their NSA program.)

First off, the argument that because FDR did something I, as a liberal, must accept it is, um wobbly. FDR imprisoned thousands of Japanese Americans; I hardly think that should have been a precedent. In this case I am not certain that FDR was entirely in the right, and I need more information to make that determination.

However, righties conveniently overlook the fact that this memo was addressed to the Attorney General, who was charged with approving the targets of wiretapping. We learned today, however, that the Justice Department has been completely shut out of the NSA program; the DoJ is not being allowed to even conduct an inquiry into what the NSA is up to. This is significant.

Of course, the NSA has reason to believe the DoJ would not approve.

Second, wiretapping is not the issue. Of course the feds should conduct surveillance, including wiretaps, of persons suspected of terrorist activity. If you’re not a regular here, be advised that I was in lower Manhattan on 9/11. I have a keen appreciation of what terrorism is, and I don’t want to see any more of it. And my understanding is that the feds have the authority to wiretap foreign nationals without a warrant.

The REAL issue is presidential authority under the constitution. As Douglas Charles points out, FDR did not use the same constitutional justification for his wiretapping power that Bush uses. This is a critical point. Another critical point is that Congress has enacted considerable legislation on wiretapping since Roosevelt’s time. Professor Charles continues,

During the mid-1970s, the widespread abuses of power by the FBI, CIA, and NSA were revealed. Two eerily relevant examples for us today, moreover, are the illegal NSA programs codenamed MINARET and SHAMROCK. Through Operation MINARET the NSA eavesdropped on the international telephone calls of some 1,600 Americans; and in Operation SHAMROCK the NSA won the cooperation of American cable companies who, for 28 years, provided the secret agency with copies of Americans’ private messages. Finally, after it was learned that President Richard Nixon liberally interpreted the crime-control law’s language to establish wiretaps on war critics, Congress responded with the Foreign Intelligence Surveillance Act. The new law created a controversial secret court from which the government would have to obtain warrants to establish foreign intelligence and counter-intelligence wiretaps. No longer would the president have the sole power to eavesdrop on communications without any oversight or accountability. Obtaining a warrant from this court, however, was not problematic, especially after the advent of the Patriot Act which lessened the standard for foreign intelligence wiretap warrants to demonstrating only a “significant” link to terrorists or foreign countries.

In RightieWorld, for some reason, the past 60 years of U.S. federal history are irrelevant.

Jonathan Turley of George Washington University, a constitutional law scholar, said on Countdown tonight that he was certain this phone database program violates federal law. He said he’s been looking all day and could find not a shred of legal authority that would permit the NSA to conduct a program like this without congressional or judicial oversight of any kind. I believe FDR’s program would also violate federal law as it exists today. Now, FDR would be required to get warrants from the FISA court to conduct wiretaps on American citizens. FISA law hadn’t yet been written in FDR’s day.

Once again, the real issue is not that Bush has the NSA conducting wiretaps and other surveillance. The real issue is that Bush has assumed unprecedented power to decide for himself what laws apply to him and which don’t. He has, in effect, declared himself to be above the law.

And the FDR example is utterly irrelevant. Once again, wiretapping is not the issue. The issue is that Bush has given himself permission to break the law.

Glenn Greenwald, an attorney with background in cases involving civil liberties, has written several posts explaining why the NSA spy program is illegal, and why Bush’s claims of “inherent authority” and congressional authorization under AUMF are bogus. You can find links to these arguments in this post. He discusses legal issues governing the surveillance program described in today’s USA Today article here. Follow these links for more information on why the NSA program is in violation of current federal law and the Constitution.

Please do not leave comments arguing with me about legality of NSA until you have read Glenn’s arguments. I don’t have time to reinvent the wheel more than twice a day.