Wednesday, December 21, 2005

President Has Legal Authority to Order Warrantless Surveillance For Foreign Intelligence

John Schmidt, associate attorney general under Pres. Clinton from 1994 to 1997, writes an article in the Chicago Tribune about the president's legal authority to do warrantless surveillance of communications. The title of the article is "President had legal authority to OK taps" (Hat tip to Power Line).

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.


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. ...

[A]s 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."

Schmidt served in the Justice Department while a Democrat was president. His position is consistent with the positions taken by every president and their legal advisors. Democrats and the mainstream media are not being intellectually honest when they ignore the legal basis for warrantless surveillance to obtain foreign intelligence.


Blogger Progressive Democrat said...

Most conservative blogs are making two basic mistakes with this guy's article.
One the fact that he worked for Clinton does nothing for your argument. Believe it or not most liberals do not worship at the altar of Clinton. This is another example of how his administration was a betrayal of democratic values, nothing more.
Two, and more importantly. You need to read the case involved and not simply repeat his misleading way of presenting it. He says 'the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.' This suggests that the court recognizes the power and doesn't call it into question. That is not how the case itself reads.

the relevant passage is here from the Powell's majority decision

The Government relies on 2511 (3). It argues that "in excepting national security surveillances from the Act's warrant requirement Congress recognized the President's authority to conduct such surveillances without prior judicial approval." Brief for United States 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case.
We think the language of 2511 (3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that:

"Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . ."

against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers - among other things - to protection "against actual or potential attack or other hostile acts of a foreign power." But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral.
Section 2511 (3) certainly confers no power, as the language is wholly inappropriate for such a purpose. It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them. This view is reinforced by the general context of Title III. Section 2511 (1) broadly prohibits the use of electronic

Page 407 U.S. 297, 304

12/21/2005 06:07:00 PM  
Blogger Progressive Democrat said...

my post was incomplete. Essentially, the rest of the passage shows that Keith is not relevant to this question, they aren't dealing with this issue.

12/21/2005 06:13:00 PM  

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