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Presidential Power, Part VI

Tuesday, December 20, 2005  |  posted by Hugh Hewitt

Today’s Wall Street Journal ediorial, “Thak You for Wiretapping,” scolds South Carolina’s Lindsey Graham for not doing his homework before appearing on the Sunday shows. It is a legitimate criticism, but one that should be applied as well to scores of MSM scribblers and talkers who simply refuse to ask any of the Defeatocrats calling for investigations and branding the program as illegal about either the Keith case or In Re: Sealed Case. From the Journal’s editorial:

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President’s power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal “court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” And further that, “We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

Here is the link to the opinion in In re Sealed Case.

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