Posted by Randy Gainer

The Justice Department announced last week that it will try to determine who leaked to the New York Times details of the NSA’s secret data mining operation. The DoJ inquiry is just one of many investigations that will probably make headlines in the next few months.

Among other questions that are being investigated:

1. Does President Bush have, as he claims, both constitutional power as commander in chief and statutory authority under the Congressional authorization to use force to respond to the 9/11 attacks to permit him to issue the executive orders that purported to authorize the NSA program? Senator Arlen Specter announced that the Senate Judiciary Committee will conduct hearings early next year that will focus on that question. The same question may be answered by federal courts: lawyers for defendants accused or convicted of terrorist-related crimes say they will challenge evidence that may have been obtained through the NSA program.

2. Why did the President choose not to use the FISA court to authorize the NSA searches? The FISA judges reportedly asked the administration to answer such questions for them after one FISA judge, Judge James Robertson, resigned to protest the NSA program.

3. If the NSA program included pattern-based searches of huge volumes of U.S. persons’ email and phone records as reported, could the FISA court authorize the searches? May any court constitutionally authorize computerized sifting through innocent U.S. persons’ call and email records to identify suspicious patterns? Defenders of the program, including Judge Posner, say “yes.” Others suggest that the FISA statute should be amended to bring the NSA program under the control of the FISA court.

4. If pattern-based data mining of U.S. phone and email records is lawful but Congress concludes that it should be supervised by the FISA court to assure that civil liberties are protected, would supervision by the court infringe on the President’s war powers? The current administration seems sure to assert that it would.