Here's the WSJ on the Bush administration's warrantless surveillance of Al Qaeda operatives in the United States. Key legal point:
The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "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."
Update: William Kristol and Gary Schmidt have a nice piece in today's Washington Post on this matter. They answer some of the questions I posed earlier.
FISA requires the attorney general to convince the panel that there is "probable cause to believe" that the target of the surveillance is an agent of a foreign power or a terrorist. Yet where is the evidence to support such a finding? Who knows why the person seized in Pakistan was calling these people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists...
[T]he Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence -- here and abroad -- as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave.
They conclude by agreeing with my point that the limit on this power of surveillance is separation of powers, i.e. the watchdog of Congress:
This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.
Last update: The definative, for now, explanation of the legalities of this surveillance is by Orin Kerr, George Washington University Law School professor of criminal law and criminal procedure, who blogs over at Volokh. His post is long, but worthwhile. His conclusion?
Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.
One thing is clear. All the left-wing cries that this is a sign of totalitarianism and a collapse of our civil liberties do not hold up under legal scrutiny. This appears to be a very difficult and complex area of law. Both sides have respectable legal arguments. The cries of "fascism" are simply the braying of cattle.
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