WARRANTLESS SEARCHES AND THE PARAMETERS OF PRESIDENTIAL WAR POWERS

” Now Watergate does not bother me…Does your conscience bother you? Tell the truth “

– Lynard Skynard

“a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

– One Hundred Seventh Congress of the United States of America

” The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “

– The Fourth Amendment to The Constitution of The United States

This has been a very difficult post for me to write. While it is common to always suspect the worst of the other side, I think intellectual honesty requires the admission that there are serious, valid, competing, Constitutional claims being made regardless of the motivations of those making them. I doubt if I am going to please anyone with this post but let the chips can fall where they may.

The Bush administration has and is authorizing the NSA to conduct ” warrantless searches” via SIGINT related to al Qaida terrorism without following the procedures set forth in the 1978 Foreign Intelligence Surveillance Act of 1978 and subsequently amended. There are three questions at issue in my view:

1. What actually happened ?

2. Was is it Constitutional ?

3. Whether it was wise ?

What actually Happened:

Despite the flurry of press, we do not actually know what happened beyond he fact that (at least) 30 authorizations for warrantless surveillance have been given presidential approval since 9/11. The source for the warrantless searches who leaked the story had the option of leaking selectively only those instances that would do the most serious political damage to the Bush administration, knowing that left the Bush administration with the unpalatable option of revealing intelligence successes or sources to defend itself. We may or may not be looking at the puzzle in its entirety.

This was an effective power play by an IC or DOJ insider who is operationally part of or at least reviews top secret SIGINT programs. Given the amount of time that has passed from the time of the leak to publication on the NYT, this person may no longer even be employed by the Federal government (Note the swift depature of longtime CIA senior managers both before and shortly after Porter Goss became DCI, over a year ago). While I personally assume that the motivations in leaking were partisan, they may be related to intra-bureaucratic warfare instead of party politics or it may be generic ” whistleblowing” to stop the program on principle. We don’t know.

Was it Constitutional ?

The administration has laid out their legal case. While I have read some of this case law previously I am a diplomatic historian and not a constitutional scholar by training so I write the following from a historian’s perspective.

The Framers of the Constitution, as is clear from the language of the document and their own writings, did not regard wartime as a normal state of constitutional affairs. Madison and the Convention took pains to insert qualifying phrases for war, rebellion, invasion and public danger. They chose define treason as a crime possible only in the context of betraying the country to an enemy in time of war. The Congress was given the power to declare war and the President to be the Commander-in-Chief in unequivocal language. War did not suspend the constitutional guarrantees but it did make certain actions possible – like suspension of habeas corpus and quartering troops via legislation – that were otherwise constitutionally impossible.

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