March 22, 2006
In any event, I'd like to make my one and only foray into the legality, or lack thereof, of the federal wiretapping programm. Jeff Goldstein has performed a yeoman's effort in wading through the issues and there is no way that I could possibly improve upon his thoughtful posts. Not that his posts changed anyone's minds, of course. The responses ranged from "Bush obviously broke the law" to "Bush obviously didn't break the law". I'm not a lawyer, but I thought that Jeff provided a pretty compelling argument that Bush had good reason to believe that he was on firm legal footing. Well, Byron York, via Betsy's Page, delivers what I believe is a knockout punch. Then again, I don't suffer from BSD and am therefore fully capable of digesting facts, and then using those facts to help form my opinion. Excerpt:
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 Then the FISA Court refused to recognize those powers and attempted to impose outdated restrictions on the administration.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.
So legal precedent exists which agrees that the President had the authority to perform warrantless wiretaps. Now I sympathize with the purist civil liberatarians that, legal or no, there is something a bit troubling about the whole activity. However, my rejoinder is that (a), the President needed to take steps to prevent another attack on US soil and (b), he had plenty of evidence that his efforts were on firm legal ground. If you believe that the law should be different than it is, then by all means, make the effort to get it changed. But don't stand around bitching about the "patently obvious illegality" of the surveillance program without first trying to acquaint yourself with those stubborn little things called facts.
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