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

Sunday, December 18, 2005  |  posted by Hugh Hewitt

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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