When it comes to the constitutionality aspect based on ” inherent war powers” – provided the surveillance was in fact organically and directly related to foreign intelligence against al Qaida – the Bush administration has a much better Constitutional case than the technical legal argument that they, in fact, followed FISA. The ” inherent powers of the presidency” argument is not not new and has some merit – in fact FISA acknowledges the legitimacy of this inherent presidential power as it relates to war in the text of the legislation by setting a 15 day time limit on warrantless searches for foreign intelligence and formal procedure for implementing them. So the question arises, is such a restriction of the powers of Commander-in-Chief by the Legislative branch constitutional or an infringement on separation of powers ?
All three branches of government rely to an extent upon the assertion of unspecified, inherent, implied powers to carry out their duties – the doctrine of judicial review being the cardinal example. Few of the liberal critics of the Bush administration would interpret the powers of Congress or the judiciary as narrowly as they are doing for President Bush in the case of warrantless searches. Few of them yelped when Clinton did similar things. On the other hand, few conservative defenders of the Bush administration today would grant such a similarly broad field of authority to the Congress or, especially, to the courts. Partisanship is affecting constitutional analysis.
FISA, like The War Powers Act or The Tenure of Office Act is simply a statute intended by the Congress to circumscribe by legislation the powers of the Commander-in-Chief. This kind of claim for the Legislative Branch is dubious or at least debatable which is why no member of Congress ever pressed the War Powers Act to SCOTUS and why no president has accepted its constitutionality.
Moreover, in historical terms, this warrantless NSA surveillance is very small beer considering the scope of the president’s powers during wartime. Past presidents have ordered actions as wartime measures as Commander-in-Chief that, in comparison, are breathtaking- including:
Mass relocation and internment
Deportation, confinement or restriction of enemy aliens
Emancipation of enslaved persons
Military tribunals for civilians who are saboteurs or spies
Imprisonment and punishment of combatants on foreign soil
High alert for strategic nuclear forces
Abraham Lincoln also suspended habeas corpus (which the Constitution assigns to Congress), openly defied rulings of SCOTUS, placed regions of Union States under martial law and approved summary executions carried out by military authorities.
Regarding the Fourth Amendment and modern jurisprudence; it strains credulity that a Supreme Court that can find a reasonable and compelling state interest in having police stop and make a warrantless search of every vehicle on a road at checkpoints, simply on the premise that some driver might be drunk, is going to find signals intelligence directed at 30 suspected al Qaida terrorists out of 300 million people to be unreasonably intrusive. It would be hard to rationalize that a random drunk driver is a greater threat and thus, a legitimate exception to the 4th Amendment, than a terrorist who might potentially have access to a weapon of mass destruction.
Was it Wise ?
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