Fraley's Dailytakes

This Blog will..I repeat WILL Officially Launch in January 2006.

Wednesday, December 21, 2005

President within His Constitutional Rights

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad. Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Yes, yes, I know...mere partisan spin.

Please note however that the above declaration regarding Bush's Constitutional authority is not my own. The statement was made by John Schmidt who served under President Clinton from 1994 to 1997 as the associate attorney general of the United States.

More of his take, here.

1 Comments:

  • At 4:05 PM, Anonymous Anonymous said…

    More from your source: "Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose."

    And from another: "Those who are willing to give up essential liberty to purchase a little temporary security are worthy of neither and will lose both."

    There is a difference between allowing the executive branch the necessary flexibility to function and dismantling our checks and balances all together. It's not too much to ask for them to go to the FISA court after the fact. If they're not intending to abuse their power, what's the problem?

    Our founding fathers had an inherent distrust of unaccountable government with unlimited power. Hence:

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    If we dismantle what they gave us a piece at a time in the end what are we protecting? The willingness of what I thought was the party of more freedom, less government, and lower taxes to sign off on this is sorely disappointing.

     

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