Originally posted by: CSMR
One argument that seems OK to me:
John Schmidt (Chicago Tribune):
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.?
Cliffnotes: No Cliffnotes here...I know this is long, but read it if you are against the program and thought John Schmidt's analysis sounded fishy, or if you support the program and want to come up with a better defense...hopefully not one that is supported by powerlineblog.
Ok, at last I had some time to really look at this argument, and it appears that John Schmidt is wrong in his analysis. It is actually a fairly good argument, but like all arguments quoting legal documents, elipses (...) are a red flag.
The quote in the Chicago Tribune article ACTUALLY hide the following piece of the decision.
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. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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.
That bolded sentence is the really important part, as it gives much different meaning to the paragraph. I admit up front that I am not a lawyer, but reading that seems to suggest that the President has authority to conduct warrantless searches LIMITED by the President's constitutional authority. In other words, they are not supporting the idea that the President has UNLIMITED power to conduct warrentless searches for foreign intelligence purposes, quite the opposite in fact. The part about FISA is simply saying that whatever the constitutional authority the President holds, FISA can't limit it. This point is obvious, as it would be true of any law...laws can't be counter to the constitution. My understanding of previous court decisions suggests that the President has the authority to conduct warrentless searches of purely foreign targets, wiretapping two terrorists in Iraq talking to each other, for example. The "boundries of that constitution authority" would then refer to limits on domestic (either all domestic or partially domestic) wiretapping.
The other interesting thing here is that it appears that this decision, rather than suggesting FISA runs counter to the President's constitution authority, seems to suggest FISA is actually a good reflection of Presidential authority. The sentence following the ones quoted above...
The question before us is the reverse, does FISA amplify the President?s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government?s contention that FISA searches are constitutionally reasonable.
The word "amplify" is rather confusing in that context, but I believe the court is using the defintion of "amplify" that means illustrating a point. In this case, the court is saying that the question before them is whether or not FISA illustrates the President's power by providing a warrant mechanism that is close to a classic warrant. In other words, in the very best case for Bush, this question would be answered by saying that, yes, FISA is within the constitutional powers of the President.
THAT is interesting as well, just what is being discussed here? If you read the Chicago Tribune piece, or any conservative blog on the planet, you might think that the court decision is about whether or not FISA runs counter to Presidential authority. And you would be right, but not in the way you might think. The court was deciding whether or not FISA was an unconstitutional expansion of government powers. Yes, that's right, this court case that is being bandied about by everyone with access to a conservative information source, actually appears to be one more legal nail in Bush's legal coffin.
To quickly summarize, this case was about the FISA court granting a warrant, and placing special oversight restrictions on the warrant that the government felt ran counter to the language of FISA. The FISA court based these limitations on what it felt were constitutional issues surrounding the language of FISA, and thus the case was kicked to the Court of the Review.
Their conclusion is as follows...
Even without taking into account the President?s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.
Accordingly, we reverse the FISA court?s orders in this case to the extent they imposed conditions on the grant of the government?s applications, vacate the FISA court?s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.
In other words, the court decision is that FISA is indeed "close enough for government work" and is constitutional. Or to put it another way, the court decided that FISA was NOT an unconstitutional expansion of Presidential authority. The question was NEVER whether or not FISA was an unconstitutional limit placed on the President, quite the opposite.
This, as you might imagine, took more than 5 mintues with Google. What DID take 5 minutes with Google was seeing dozens and dozens of conservative sites and articles, all posting the exact same idea with the exact same bits of text cherry picked from the legal ruling. THAT is what got me to actually read through the majority of the ruling, because it was clear that nobody else had.
