President and warrantless wiretapping  

redmustang91 57M  
8701 posts
4/6/2006 8:34 am

Last Read:
4/6/2006 8:37 am

President and warrantless wiretapping

Does Pres. Bush have to get a warrant to wiretap US Citizens in the US talking with foreign citizens in foreign countries or others in the US about subjects that might include terrorism? Maybe!

Bush says he has authority as Pres to do all that is necessary and proper to protect the country. Critics say there is a law, FISA, passed in 1978 for a secret court to review suuch applications and rubber stamp them! The court almost always approves, with no adversarial hearing, but it does require some paperwork and limits the length of the wiretapping unless some evidence is found, theoretically. The results are secret so no one knows if there is any real protection of rights from the court review.

The Judges who administer FISA described their views at the US Senate hearing and had mixed views about the President's duty to ask for warrants:

Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary. *** The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans. ***

Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?

Judge Kornblum: No President has ever agreed to that. ***

Senator Feinstein: What do you think as a Judge?

Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.

Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?

Judge Baker: No, I do not believe that a President would say that.

Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?

Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too. ***

Senator Feinstein: Judge?

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution. ***

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

Bottom line: In my view Bush should ask the Justice Department to follow the FISA law as it is not that much trouble and slightly safeguards Americans' rights; following FISA will also allow the evidence to be used in any criminal cases brought in the US. FISA allows after the fact warrants as well, which can be obtained in 15 minutes over the phone! Not an in depth review!

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