Monday, February 09, 2009

Bush Vindicated on Wiretaps

When Barack Obama, at his inauguration, took a smarmy swipe at President Bush on the issue of the “rule of law,” he did what liberals typically do.

He assumed that the law means what he wants it to mean.

But Bush, not Obama, was right about the law, at least according to the Foreign Intelligence Surveillance Court of Review.

From the Wall Street Journal:
Ever since the Bush Administration’s warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.

In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government’s Constitutional authority to collect national-security intelligence without judicial approval. The case was not made public before yesterday, and its details remain classified. An unnamed telecom company refused to comply with the National Security Agency’s monitoring requests and claimed the program violated the Fourth Amendment’s restrictions on search and seizure.

But the Constitution bans only “unreasonable” search and seizure, not all searches and seizures, and the Fourth Amendment allows for exceptions such as those under a President’s Article II war powers. The courts have been explicit on this point. In 1980, the Fourth Circuit Court of Appeals held in Truong that “the Executive need not always obtain a warrant for foreign intelligence surveillance.” The FISA appeals court said in its 2002 opinion In re Sealed Case that the President has “inherent authority to conduct warrantless searches to obtain foreign intelligence information” and took “for granted” that “FISA could not encroach on the President’s constitutional power.”
Of course, the Clinton administration claimed the authority of conduct searches connected with national security without a warrant.

But the media somehow didn’t remember this when it went ballistic over Bush’s supposed “illegal” wiretapping.

Lesson: the law doesn’t necessarily mean what you want it to mean. To use the concept “rule of law” to bash somebody who simply disagrees with you on policy is the ultimate show of contempt for that concept.

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Blogger Brian said...

WSJ: "the Fourth Amendment allows for exceptions such as those under a President’s Article II war powers."

The Fourth Amendment makes no such exceptions. SCOTUS might interpret the Constitution that way, however. They must love to give the executive wide berth because "The President Shall be Commander-in-Chief ..." doesn't mean to me as "Commander-in-Chief, naturally, implies that the executive may grow the scope of 'particularly' in the Fourth Amendment (from 'particularly describing the place to be searched, and the persons or things to be seized') to include "all persons, everywhere."

I find it troubling that the state is telling us "just this one time, just during this War." A war against not any particular state. I don't feel comfortable relying on the federal government to be prudent and cede this power when it thinks this particular war is over. "War" is some kind of backwards euphemism anyways, since Article I talks about the power of Congress alone to declare wars, which we don't do even when we know which state we're going to topple next.

9:17 AM  
Anonymous James Pawlak said...

There was a time when the Laws Of War and the rule of such law allowed terrorist found under arms to be summarily executed by lawful military forces. It appears that this concern for the common good is another victim of professional victims and political correctness little different from the case you cited.

9:25 AM  
Blogger Billiam said...

Someone explain this to me. I'm not bashing anyone, except maybe Congress. How can a President have War Powers if Congress didn't declare War. Is that not required by The Constitution? Or is read differently now.

10:45 AM  

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