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Presidential Power and the Surveillance of Foreign Powers Conspiring with United States Citizens

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Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warrantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits “unreasonable” searches and seizures has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act (an introduction from a critic of the Act is here) cannot be read as a limit on a constitutional authority even if the Act purported to so limit that authority.

“Further, the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president’s executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, any more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority. (They can influence the Supreme Court’s interpretation of the president’s authority, as discussed by Justice Jackson in his famous opinion in the Steel Seizure Cases.) The 1972 decision contains a colloquy from the Senate floor between Senators Hart, Holland, and McClellan on that illustrates the correct understanding of this crucial principle:

“Mr. HOLLAND. . . . The section [2511 (3)] from which the Senator [Hart] has read does not affirmatively give any power. . . . We are not affirmatively conferring any power upon the President. We are simply saying that nothing herein shall limit such power as the President has under the Constitution. . . . We certainly do not grant him a thing.

“There is nothing affirmative in this statement.

“Mr. McCLELLAN. Mr. President, we make it understood that we are not trying to take anything away from him.

“Mr. HOLLAND. The Senator is correct.

“Mr. HART. Mr. President, there is no intention here to expand by this language a constitutional power. Clearly we could not do so.

“Mr. McCLELLAN. Even though intended, we could not do so.

“Mr. HART. . . . However, we are agreed that this language should not be regarded as intending to grant any authority, including authority to put a bug on, that the President does not have now.

“In addition, Mr. President, as I think our exchange makes clear, nothing in section 2511 (3) even attempts to define the limits of the President’s national security power under present law, which I have always found extremely vague . . . . Section 2511 (3) merely says that if the President has such a power, then its exercise is in no way affected by title III.”[Footnote 7] (Emphasis supplied.)

The first question is the scope of the president’s authority to order warrantless surveillance on participants in plots involving foreign powers against the United States. The president and his legal authorities have concluded that he does have that authority, even if the plot involves some American citizens. Apparently Congressional critics of the action do not believe it. There is no definitive Supreme Court precedent on the question, and the Congress cannot define the answer even if it wished to. (Examine every commentary on the issue to see if this candid admission is made. If not, then the writer is not being honest about the central issue in the debate, or is ill-informed.)

If Hillary wants to run in 2008 on the pledge that she will not conduct warrantless surveillance of foreign powers plotting against the United States when those plots involve an American citizen, she has that right. If the Senate Democrats, already committed to blinding American intelligence in the GWOT by allowing the Patriot Act to lapse, want to make the issue of warrantless surveillance of foreign powers plotting against the United States when those plots involve American citizens, I think every GOP candidate ought to gladly take up that challenge.

I am reproducing Justice Jackson’s concurrence in the extended entry for the convenience of the reader, as well as the opinion from the 1972 decision. At the conclusion of that Justice Jackson’s opinion, he wrote a summary applicable to the current assertion of presidential authority:

The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights.

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The President’s Remarks This Morning

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President Bush this morning:

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.

This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.
As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad. Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn’t know they were here, until it was too late.

The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities. The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time. And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.

The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.

The NSA’s activities under this authorization are thoroughly reviewed by the Justice Department and NSA’s top legal officials, including NSA’s general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.

This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I’m the President of the United States.

(HT: Powerline) Any responsible newspaper would reprint them in their entirety tomorrow, with a prominent, front page placement.

UPDATE:

Josh Marshall on why non-lawyers should never present their legal conclusions and the analysis that supports them:

According to the original Times article and subsequent reports, the president’s authority to override statute law comes from the 2001 congressional resolution authorizing the force to destroy al Qaida.

By that reasoning the president must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper.

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The GOP Gets Serious About Border Security; The Democrats Go Ahab and Filibuster the Patriot Act

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It has taken four years, but the House of Representatives last night voted to get very serious about border security, voting to build fences along the U.S.-Mexican border, and to take other measures to reduce the flood of illegal border crossers, thus making the job of the expanded Border Patrol much easier. Here is the electronic guide to the bill. It is now up to the Senate to match the House’s very systematic approach to the nation’s border security.

But the Senate, hobbled by a hard left Democratic Caucus, can’t even renew the Patriot Act, which will now lapse at midnight on December 31, 2005 thanks to a Democrat-led filibuster. (The contact info for the four GOP senators who joined all but two of the Democrats in filibustering the Patriot Act is in this post.)

In less than eleven months the country will get to vote on what it believes about the priority that ought to attach to national security. The past month has revealed the true nature of the Democrats: committed to defeat and retreat in Iraq, open borders, and a crippled intelligence system. The collapse of the Democrats’ credibility on national security is complete. It isn’t a political party anymore. It is a suicide pact.

The Right Questions

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Geraghty on the catch-and-release of Zarqawi: “Why is this information coming from the deputy minister of interior? Does he have any axe to grind with the individuals currently in charge of Iraq’s military forces, and would he have any motive to make them look bad?”

NRO on Sununu: “If New Hampshire Republican Senator John Sununu wants to endanger our national security, shouldn’t he at least know what he’s talking about?”

HH on Christmas shopping: “Why not help merchants in the recovery zone? Like Laura’s Candies?

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