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| 2005-12-28 | |
The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration. After all, even the administration's sternest critics do not deny the compelling need to collect intelligence about Al Qaeda's plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush's decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act. In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has "probable cause" to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent. Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate "spy versus spy" world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use. Indeed, it is highly doubtful whether individuals involved in a conflict have any "reasonable expectation of privacy" in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself - anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities. Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties. As the FISA court itself noted in 2002, the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance." In this instance, in addition to relying on his own inherent constitutional authority, the president can also draw upon the specific Congressional authorization "to use all necessary and appropriate force" against those responsible for the Sept. 11 attacks "in order to prevent any future attacks of international terrorism against the United States." These words are sufficiently broad to encompass the gathering of intelligence about the enemy, its movements, its abilities and its plans, a core part of the use of force against Al Qaeda and its allies. The authorization does not say that the president can order the use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush is barred from doing so. The fact that the statutory language does not specifically mention intelligence collection, or that this matter was not raised by the White House in negotiations with Congress, or even that the administration had sought even broader language, all points recently raised by former Senator Tom Daschle, is irrelevant. Overall, this surveillance program is fully within the president's legal authority, is limited in scope (involving communications to or from overseas related to the war against Al Qaeda), and is subject to stringent presidential review. The contretemps its revelation has caused reveals much more about the chattering classes' fundamental antipathy to strong government in general, and strong executive power in particular, than it does about presidential overreaching. The Constitution's framers did not vest absolute power in any branch of the federal government, including the courts, but they did create a strong executive and equipped the office with sufficient authority to act energetically to defend the national interest in wartime. That is what President Bush has done, and nothing more. David B. Rivkin and Lee A. Casey are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations. | |
| Posted by:Steve White |
| #8 I still want the NYT staff in jail unless they drop dime on the leaker. Can you see Pinchy in an orange jump suit? |
| Posted by: Cyber Sarge 2005-12-28 14:19 |
| #7 Look again: this is a Fig leaf piece written, not by NYT opinion editors, but by lawyers from the Bush I and Reagan Justice departments. Sure, it's lacking in some pertinent facts, and could be a bit more fiery, but if they did, the NYT editors would have nixed it and looked for someone more tame and accomodating: Ann Coulter got dismissed from covering the democratic national convention because she was BETTER at poking fun at the democrats SACRED COW than Moore at the Republican convention. They probably let this out very reluctantly, and only after making a promise to spike any other pro-bush commentary for the next two weeks. |
| Posted by: Ptah 2005-12-28 10:24 |
| #6 Puzzled - FISA was set up as an expedited process for National Security search/surveillance warrants that came short of completely abandoning the principle of judicial review. In exchange for the shortcuts and lower probable cause burden in the FISA system, the information obtained under these warrants was supposed to be excluded from the criminal justice system. It was pretty much a rubber stamp until 2002, when the court started to second guess what I'm guessing were more "ambitious" requests from the administration post 9/11. |
| Posted by: Shomble Elmeng3297 2005-12-28 10:21 |
| #5 This was an op-ed, not an opinion written by the NYT editorial board. You'll note it was written by Reagan/Bush 41 appointees. |
| Posted by: Seafarious 2005-12-28 09:53 |
| #4 Is this some sort of apology? First they let it out that the US is doing it, stirr up all the hate and dicontent, and now they publish it was all legal??? These asshats that call themselves journalists are seitious morons who's Sophmoric acts need to face a judge and jury. |
| Posted by: 49 pan 2005-12-28 08:24 |
| #3 This still doesn't change the fact that I would rather try to read some paper smeared with canine feces than the NYT. |
| Posted by: Mahou Sensei Negi-bozu 2005-12-28 02:41 |
| #2 Although the administration could have sought such warrants, it chose not to for good reasons. I think I feel faint... |
| Posted by: Bomb-a-rama 2005-12-28 02:16 |
| #1 Can any Rantburger explain to me why FISA was enacted in the first place? What was it supposed to accomplish? From all I have read, all it did was set up a process of review that admins were free to ignore-- and every subsequent admin has ignored!-- under the war-making power vested in the executive by the Constitution. So what the heck was FISA supposed to accomplish? Puzzled In Long Beach |
| Posted by: Wuzzalib 2005-12-28 00:41 |