[IP] FISA vs. Constitution
Begin forwarded message:
From: "Atkinson, Robert" <rca53@xxxxxxxxxxxx>
Date: December 28, 2005 9:38:39 AM EST
To: dave@xxxxxxxxxx
Subject: FISA vs. Constitution
Dave:
Today’s Wall Street Journal has an op-ed which suggests that is FISA,
not the NSA interceptions, that is unconstitutional. See:http://
online.wsj.com/article/SB113573858850532715.html?
mod=opinion_main_commentaries Some excerpts:
* * *
Space does not permit a discussion here of the congressional
lawbreaking that took place in the wake of the Vietnam War. It is
enough to observe that the Constitution is the highest law of the
land, and when Congress attempts to usurp powers granted to the
president, its members betray their oath of office. In certain cases,
such as the War Powers Resolution and the Foreign Intelligence
Surveillance Act, it might well have crossed that line.
* * *
I'm not saying that what the president authorized was unquestionably
lawful. The Supreme Court in the 1972 "Keith case" held that a
warrant was required for national security wiretaps involving purely
domestic targets, but expressly distinguished the case from one
involving wiretapping "foreign powers" or their agents in this
country. In the 1980 Truong case, the Fourth U.S. Circuit Court of
Appeals upheld the warrantless surveillance of a foreign power, its
agent or collaborators (including U.S.citizens) when the "primary
purpose" of the intercepts was for "foreign intelligence" rather than
law enforcement purposes. Every court of appeals that has considered
the issue has upheld an inherent presidential power to conduct
warrantless foreign intelligence searches; and in 2002 the U.S.
Foreign Intelligence Surveillance Court of Review, created by the
FISA statute, accepted that "the president does have that authority"
and noted "FISA could not encroach on the president's constitutional
power."
* * *
Section 1811 of the FISA statute recognizes that during a period of
authorized war the president must have some authority to engage in
electronic surveillance "without a court order." The question is
whether Congress had the power to limit such authorizations to a 15-
day period, which I think highly doubtful. It would be akin to
Congress telling the president during wartime that he could attack a
particular enemy stronghold for a maximum of 15 days.
* * *
Ultimately, as the courts have noted, the test is whether the
legitimate government interest involved -- in this instance,
discovering and preventing new terrorist attacks that may endanger
tens of thousands of American lives -- outweighs the privacy
interests of individuals who are communicating with al Qaeda terrorists.
* * *
Our Constitution is the supreme law, and it cannot be amended by a
simple statute like the FISA law. Every modern president and every
court of appeals that has considered this issue has upheld the
independent power of the president to collect foreign intelligence
without a warrant. The Supreme Court may ultimately clarify the
competing claims; but until then, the president is right to continue
monitoring the communications of our nation's declared enemies, even
when they elect to communicate with people within our country.
-------------------------------------
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