The President’s Constitutional Authority To Do Warrantless Wiretaps By Betsy Newmark

Byron York explains in terms that we laymen can understand why Bush was on firm legal ground with his warrantless surveillance program. Read his background and discussion of In re: Sealed Case from 2002 and you’ll see why Bush’s legal advisers believe that he is on quite firm basis for the NSA surveillance program.

And then the Court of Review did one more thing, something that has repercussions in today’s surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . 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.”

It was a clear and sweeping statement of executive authority. And what was most likely not known to the Court of Review at the time was that the administration had, in 2002, started a program in which it did exactly what the Court of Review said it had the power to do: order the surveillance of some international communications without a warrant.

Read today, In re: Sealed Case does more than simply outline the president’s authority. It also puts the administration’s warrantless-surveillance decision in some context. What was going on at the time the president made the decision to go ahead with the surveillance? Well, first Congress passed the Patriot Act, giving the administration new powers. Then the FISA Court refused to recognize those powers and attempted to impose outdated restrictions on the administration. Then the White House, faced with the FISA Court’s opposition — and with what administration officials believed were some inherent weaknesses in the FISA law — began to bypass the FISA Court in some cases. And then, in In re: Sealed Case, the administration received irrefutable legal support for its actions.

After the decision was handed down, the American Civil Liberties Union, which had submitted a brief in support of the FISA Court’s actions restricting the administration, asked the Supreme Court to review In re: Sealed Case. The justices declined to take any action. That is not the same as the Court’s upholding the ruling, but it does mean that the justices looked at the decision and chose not to intervene.

Today, the opinion stands as a bedrock statement of presidential power. And ironically, it came from a case that was not about whether the president had overstepped his bounds, but about whether the courts had overstepped their bounds. The Court of Review ruled strongly in favor of the president, and the Supreme Court declined to reconsider that decision. Reading the opinion, it’s no wonder that George W. Bush has so strongly defended the surveillance program. If the FISA Court of Review is right, he has the Constitution on his side.

I’m not a lawyer, of course, but this seems pretty persuasive to me. If it is not, I want to hear the arguments why a 2002 case that specifically mentioned the president’s power to order warrantless searches and which the Supreme Court declined to review is not relevant to the entire discussion.

I wish that some reporter when interviewing Russ Feingold, instead of focusing on the politics of his censure proposal, would get into the weeds and talk about the actual legal arguments. I keep seeing liberal legal analysts on TV who talk about the surveillance program as if it’s a given that the program is unconstitutional. What do they say when presented with this 2002 case? And how come no one in the media seems to have done enough research to ask informed questions when these people go on TV?

This content was used with the permission of Betsy’s Page.

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