The President Is Bound By The Constitution, Not The Whims Of Congress
The Surveillance Law That Matters
By Robert F. Turner
I have never met Judge Michael Mukasey, and I have no strong feelings on who should be our next attorney general. But after four decades studying and writing about national security aspects of our Constitution, I believe Congress and the American people must understand that some of the issues raised in Mr. Mukasey’s confirmation hearings are far more complex than they may initially appear.
Take, for example, Sen. Pat Leahy’s question to Mr. Mukasey about whether the president has the power to violate the Foreign Intelligence Surveillance Act (FISA). I know that statute well, having worked in the Senate when it was enacted in 1978, and later serving as the senior White House lawyer under President Reagan charged with overseeing the implementation of FISA and other intelligence laws.
The real issue here is not whether the president is “above the law,” but rather which “law” he must see “faithfully executed” when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.
In 1803, Chief Justice John Marshall declared in Marbury v. Madison: “an act of the legislature repugnant to the Constitution is void.” From the earliest days of our history until FISA was enacted, it was understood by all three branches that the Constitution had left the president (to quote Federalist No. 64) “able to manage the business of intelligence as prudence might suggest.”
When Congress passed the first wiretap statute in 1968, it expressly declared that nothing in it would limit “the Constitutional power of the President” to collect foreign-intelligence information. Every administration from FDR to (and including) Jimmy Carter engaged in warrantless foreign-intelligence wiretapping in the belief that this was one of the “exceptions” to the Fourth Amendment’s warrant requirement. Others include border searches and searches of commercial airline passengers and their luggage (not to mention the requirement, imposed by Congress, that citizens entering a congressional office building to exercise their constitutional right to petition their government for redress of grievances must submit to a warrantless search absent the slightest probable cause).
In 1978, Carter administration Attorney General Griffin Bell told the Senate that FISA “does not take away the power of the President under the Constitution”; but he explained that the statute could nevertheless work because President Carter was “agreeing to follow the statutory procedure.” That was Mr. Carter’s prerogative as it is President Bush’s–but neither they nor Congress may take away the constitutional power of future presidents.
The Foreign Intelligence Surveillance Court of Review (composed of federal appeals court judges) noted, in a unanimous 2002 opinion, that every federal court to decide the issue held the president has constitutional power to authorize warrantless foreign-intelligence electronic surveillance. The opinion added: “FISA could not encroach on the President’s constitutional power.”
Full WSJ article Here.
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I’m certainly not going to contend that we don’t need wiretapping, but I think the problem is that the Bush Administration is trying to put it officially on the books, for all to see. This is just asking for trouble though from constitutionalists and Libertarians. Stuff like warrantless wiretapping and torture is best left in the basement or the closet under the stairs, where we keep things we definitely need but generally don’t want to look at.
October 24th, 2007 at 8:53 amDUH!!!! What have the conservative pundits been saying about this since the NY Times Betrayed US in revealing the NSA program? Where was this guy last year when the democRats created a fake controversy over this? Will the MSM give any “face time” to him? Hell, no. They have already convinced the sheeple that Bush is spying on all of us.
October 24th, 2007 at 8:59 amIn response to Jack - while I think we all believe that the Constitution is not a suicide pact, neither should we allow ourselves to be governed according to the whims of attorneys bent on getting uninformed juries to enact their own version of government through the court system as opposed to debating it in front of a legislative body (something we all know would fail). While I don’t want the NSA or FBI knocking on my door because I happen to mention IEDs or Car Bombs during a phone call or email, I do want them knocking on the door of the guy from Pakistan, Saudi Arabia, or North Africa whose talking to someone on a “watch list” that does. While all govt. programs are susceptible to abuse and incompetance, we need to trust that established rules will be followed and all tools used. While there is no Constitutional reason for Pres. Bush to need this legislation to fight a war, the nation’s lawyers have been able to dupe the general population and the system into believing that it does exist. Because of this, Pres. Bush has chosen to try and get legal protections enacted that even though they DO NOT expand his powers, they do protect those that assist him in the exercise of said powers.
October 24th, 2007 at 10:55 am