Marquette Warrior: Bush Had Legal Authority to Order Wiretaps

Thursday, December 22, 2005

Bush Had Legal Authority to Order Wiretaps

From Fraley’s Dailytakes:

. . . an analysis of the fact that Federal case law clearly supports Bush’s right to order wiretaps in the interest of national security. In the Chicago Tribune, John Schmidt argued:
In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that “All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority.”

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an “agent of a foreign power,” which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law’s procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, “FISA could not encroach on the president’s constitutional power.”
The brief bio at the bottom of the article notes: “John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States.”

Note that if the President has this inherent authority, Congress cannot take it away, just as Congress cannot decide that the President cannot be the Commander in Chief of the Armed Forces.

Many Americans are unhappy about Bush’s use of this power, feeling instinctively that it could easily be abused. And indeed it could.

But arguing that the president should not have such a power is different from arguing that Bush is some sort of outlaw, scoffing at the Constitution.

All sorts of things limit the President’s power, including public opinion, the Congress (which can do lots to impede presidential action, even when the President is acting constitutionally), and the courts (which can respond to abuses in the exercise of even legitimate powers).

But we can’t seriously address these issues until we get past bogus “Bush broke the law” rhetoric.


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